Opinion
C. A. KC-2020-0521
07-14-2021
EAST GREENWICH COVE BUILDERS, LLC v. LOUISE J. SCHNAIER
For Plaintiff: Jackson C. Parmenter, Esq. Michael Resnick, Esq. For Defendant: Kelly M. Fracassa, Esq.
For Plaintiff: Jackson C. Parmenter, Esq. Michael Resnick, Esq.
For Defendant: Kelly M. Fracassa, Esq.
DECISION
LICHT, MAGISTRATE JUSTICE.
Plaintiff East Greenwich Cove Builders, LLC (Plaintiff or EGCB) has moved for summary judgment asking the Court to declare as unenforceable a purchase and sale agreement for a condominium unit in East Greenwich, Rhode Island. Defendant Louise J. Schnaier (Defendant or Schnaier) objects to Plaintiff's motion and filed a cross-motion for partial summary judgment seeking to have the purchase and sale agreement for the condominium unit at issue declared as a valid and enforceable contract that remains in full force and effect. For the reasons stated herein, the Court grants Plaintiff's Motion for Summary Judgment and denies Defendant's Cross-Motion for Partial Summary Judgment.
I
Facts and Travel
EGCB has been in the process of developing a condominium complex on land it owns at 15 Castle Street in East Greenwich. In January 2020, EGCB produced a Public Offering Statement for Castle Street Cottages Condominiums (POS). The form of the Purchase and Sale Agreement (P&S) to be executed by purchasers was attached as Exhibit C to the POS.
Shortly thereafter, in early February 2020, EGCB and Schnaier began discussions whereby she would purchase one of the condominium units to be built by EGCB. On March 16, 2020, Gerald Zarrella Jr. (Zarrella) on behalf of EGCB as the Seller and Schnaier as the Buyer executed a Purchase and Sale Agreement (Agreement) pursuant to which Schnaier would buy Unit 8 at the Castle Street Cottages Condominiums for $550,000. She paid EGCB a deposit in the amount of $50,000. The Agreement did not provide for a closing date as EGCB had not yet built the unit. The language of the Agreement incorporated as Exhibit A "Plans and Specs." Yet no Exhibit A was attached to the Agreement.
At the time of the execution, EGCB had not recorded the condominium declaration. In other words, EGCB had not declared Unit 8 as a condominium unit nor had Unit 8 been constructed. The essence of the dispute between the parties revolves around whether Unit 8 was adequately described to create a contract between them. For the Court to decide these motions, a brief history of the effort to establish plans and specifications for Unit 8 is in order.
EGCB later recorded a declaration dated September 30, 2020 pertaining to units 1 through 3, 5, and 6 on October 1, 2020.
On August 24, 2018, the Planning Director for the Town of East Greenwich (Town) sent 620 Main Street Associates, LLC a "notice [of] Final Plan Approval of the project known as Castle Street Cottages," which approval was based on a ten-page set of plans entitled "Final Plan Application: Castle Street Cottages dated June 27, 2018" (the June 2018 Plans).
There is nothing in the record that indicates the relationship between 620 Main Street Associates, LLC and EGCB, but the Court assumes it was a predecessor in title to EGCB.
The next set of plans for the Castle Street Cottages Condominiums, dated March 12, 2019, were submitted to the Planning Board of the Town (the Board), and, according to EGCB, the Board ultimately approved them (the March 2019 Plans). It is unclear what the differences, if any, were between the June 2018 Plans and the March 2019 Plans.
The March 2019 Plans show Building E with Units 8 and 9 and depict Unit 8 as a 1, 000 square foot duplex. On February 14, 2020, Schnaier met with Debra Zarrella (Debra) of Zarrella Development Corp., a designer, not an architect, and Matt St. Ours, EGCB's realtor. At the meeting, a schematic was produced which increased the size of Unit 8 from 1, 000 square feet to 1, 400 square feet with a partially finished basement of 700 square feet (the February 14, 2020 schematic).
Even before the Agreement was signed, Schnaier expressed her dissatisfaction with the February 14, 2020 schematic. Thus, on March 2, 2020, Schnaier, Zarrella, Debra, and Don Powers of Union Studio, Inc., an architectural firm hired by EGCB to design the buildings, met to discuss plans for Unit 8. Union Studio then produced several versions of proposed plans: (1) the March 12 proposal with a different building from that originally proposed, increasing the size of the floor plan to 2, 489 square feet; (2) the March 27 proposal with a floor plan of 2, 745 square feet; and (3) the April 7 proposal with an even larger floor plan of 2, 984 square feet. None of these proposals were agreed to by EGCB.
Later, in mid-April 2020, the foundation for Unit 8 was poured by EGCB, and Zarrella had Schnaier inscribe her initials in the wet concrete. However, Zarrella did not follow the plans previously approved by the Board. He placed the foundation in a different location and deviated from the construction drawings. This resulted in a stop-work order and notice of violation from the Town building official. Consequentially, EGCB then produced a survey showing Unit 8 renumbered as Unit 9 and Building E renumbered as Building 5. Unit 9 (formerly known as Unit 8) was now a standalone unit because the Board would not approve Building E as a duplex.
Union Studio withdrew from the project, and DLR Dimensions, Inc. stepped in, producing building plans for Unit 8, now known as Unit 9. Those plans were dated May 26, 2020 and included in Schnaier's Appendix at 384-85 and are partially illegible.
In an undated note, which appears to have been sent in May 2020, Zarrella informed Schnaier that the only plans EGCB had were the plans that were submitted to the Town dated March 2019. He further stated that no contract existed between the parties because the Agreement did not contain an essential element, namely a description of the property to be sold, and, therefore, the Agreement was incomplete and unenforceable. Zarrella highlighted that none of Schnaier's counter proposals to the February 14, 2020 schematic had been accepted by EGCB. He gave Schnaier until 5:00 p.m. on May 26, 2020 to deliver to EGCB a set of plans drawn pursuant to the Agreement. If no plans were submitted, Zarrella stated that EGCB would consider the Agreement void. Zarrella also included the option to continue negotiations for a unit larger than the unit contemplated in the Agreement, on the condition that Schnaier agree to void the Agreement. Schnaier did not deliver a set of new plans nor did she negotiate for the larger unit.
EGCB filed this action on June 12, 2020 seeking a declaration that no contract existed. Schnaier answered on July 8, 2020 and counterclaimed for specific performance and, alternatively, damages. EGCB now moves for summary judgment, stating that the Agreement is not an enforceable contract because it is missing an essential term-an adequate description of the condominium. Defendant filed an objection as well as a cross-motion for partial summary judgment seeking to have the Agreement declared as an enforceable contract. The hearing took place on January 4, 2021. During oral argument, for the first time, Defendant advanced the argument that the June 2018 Plans provided the adequate description for the property. Because neither party had the plans in their possession to submit to the Court for proper review, the Court stated that it would reserve decision on this matter. After oral argument, the parties attempted to resolve the issues and asked the Court to delay issuing a decision until further notice. The parties later informed the Court that they were unable to resolve the case and asked the Court to render its decision.
II
Standard of Review
"Summary judgment is a drastic remedy, and a motion for summary judgment should be dealt with cautiously." Employers Mutual Casualty Co. v. Arbella Protection Insurance Co., 24 A.3d 544, 553 (R.I. 2011) (internal quotations omitted). "[S]ummary judgment is appropriate when, viewing the facts and all reasonable inferences therefrom in the light most favorable to the nonmoving party, the Court determines that there are no issues of material fact in dispute, and the moving party is entitled to judgment as a matter of law." Quest Diagnostics, LLC v. Pinnacle Consortium of Higher Education, 93 A.3d 949, 951 (R.I. 2014) (internal quotations omitted). The moving party bears the initial burden of establishing that no such issues exist. Heflin v. Koszela, 774 A.2d 25, 29 (R.I. 2001). If the moving party can sustain its burden, then the "litigant opposing a motion for summary judgment has the burden of proving by competent evidence the existence of a disputed issue of material fact and cannot rest upon mere allegations or denials in the pleadings, mere conclusions or mere legal opinions." American Express Bank, FSB v. Johnson, 945 A.2d 297, 299 (R.I. 2008) (internal quotations omitted).
While there are many facts in dispute in this case, the issue for the Court is whether any of those disputed facts are material. The Supreme Court has recognized that '"[d]emonstrating mere factual disputes will not defeat summary judgment; the requirement is that there be no genuine issue of material fact."' Deutsche Bank National Trust Company for Registered Holders of Ameriquest Mortgage Securities, Inc. v. McDonough, 160 A.3d 306, 311 (R.I. 2017) (emphasis added) (quoting Moura v. Mortgage Electronic Registration Systems, Inc., 90 A.3d 852, 856 (R.I. 2014)). In Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986), the United States Supreme Court held that when it comes to the issue of materiality,
"the substantive law will identify which facts are material. Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted. . . . [W]hile the materiality determination rests on the substantive law, it is the substantive law's identification of which facts are critical and which facts are irrelevant that governs." Anderson, 477 U.S. at 248 (internal citation omitted).
Simply put, a dispute about a material fact is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. This legal concept was upheld in the recent Rhode Island Supreme Court case, Read's Landscape Construction, Inc. v. The Town of West Warwick, et al. (Nos. 2019-313; 2019-323; 2019-442) (June 10, 2021), where the Supreme Court affirmed the trial justice's granting of summary judgment. In that case, the Supreme Court determined that while there were issues of fact, there were no genuine issues of material fact that precluded summary judgment.
The trial justice concluded that "any alteration to the deed [in question]-which apparently added a reference to the date, book, and page in which the January 20 minor subdivision plan was filed- was not material because '[t]he recording information is nothing more than a mere reference point for future surveyors or title attorney[s]' and that 'adding the recording reference in no way materially changed what was conveyed by the Warranty Deed.'" Read's Landscape Construction, Inc. v. The Town of West Warwick, et al. (Nos. 2019-313; 2019-323; 2019-442) (June 10, 2021) at 7-8.
III
Analysis
A
Enforceability of the Purchase and Sale Agreement
The issue before the Court is straightforward: does the Agreement executed by the parties contain the essential terms to be an enforceable contract under Rhode Island law? The Statute of Frauds provides in part that "[n]o action shall be brought:
"(1) Whereby to charge any person upon any contract for the sale of lands, tenements, or hereditaments, or the making of any lease thereof for a longer time than one year;
". . .
"[U]nless the promise or agreement upon which the action shall be brought, or some note or memorandum thereof, shall be in writing, and signed by the party to be charged therewith, or by some other person by him or her thereunto lawfully authorized." G.L. 1956 § 9-1-4(1), (7).
"It is well settled that a contract for the sale of land need not be in writing to satisfy the statute of frauds as long as there is a memorandum that contains 'the substance of the contract or agreement,' but need not include all of the particulars." 731 Airport Associates v. H & M Realty Associates, LLC ex rel. Leef, 799 A.2d 279, 284 (R.I. 2002) (quoting Greensleeves, Inc. v. Smiley, 694 A.2d 714, 716 (R.I. 1997)). The Rhode Island Supreme Court has held that Statute of Frauds only requires a '"note or memorandum'" that '"sets out who are the seller and the buyer, their respective intention to sell and to purchase, such a description of the subject matter of the sale as may be applied to a particular piece of land, the purchase price, and the terms of payment if the sale is not for cash; and further such note or memorandum must be signed by the party to be charged in the action or by his agent lawfully authorized.'" Greensleeves, 694 A.2d at 716 (quoting Preble v. Higgins, 41 R.I. 10, 109 A. 707, 709 (1920); Sholovitz v. Noorigan, 42 R.I. 282, 285, 107 A. 94 (1919)).
Most courts have viewed the Statute of Frauds analysis and the common law contract analysis of the inclusion of essential terms as basically one in the same. See 62 Am. Jur. Proof of Facts 3d 347. Under the law of contracts, "[i]t is well established that a valid contract requires 'competent parties, subject matter, a legal consideration, mutuality of agreement, and mutuality of obligation.'" DeAngelis v. DeAngelis, 923 A.2d 1274, 1279 (R.I. 2007) (quoting Rhode Island Five v. Medical Associates of Bristol County, Inc., 668 A.2d 1250, 1253 (R.I. 1996)).
The issue that commands the Court's attention is whether there was mutuality of agreement; more specifically, did the Agreement adequately describe the property to be conveyed. Defendant argues that the language of the Agreement as well as the incorporated POS adequately describe the property EGCB agreed to convey to Defendant-namely, Unit 8. At oral argument, Defendant described a chain of incorporated documents through a multi-step process to finally arrive at what she argues is the adequate description of the property. Plaintiff contends that even if this Court were to accept Defendant's argument that the POS is incorporated into the Agreement, such incorporation has no bearing on the issue because the only description of any real property within the POS is the entire parcel of land that makes up the development, which cannot be said to describe the specific unit to be constructed and sold.
Defendant draws the Court's attention to the following which she contends leads to the conclusion that the Agreement describes the property to be sold:
(1) The Agreement states, "[y]our Unit is described as Unit #_8_ on that Condominium known as Castle Street Cottages Condominiums which is recorded in the Land Evidence Records in the Town of East Greenwich, Rhode Island in Book __at Page__ or will be recorded in the Land Evidence Records of the Town of East Greenwich, Rhode Island prior to the conveyance of Your Home";
(2) The POS, which contains a metes and bounds description of the parcel;
(3) Exhibit D to the POS refers to the "Planning Board Approval in Book 1420 at Page 200," which is a letter dated August 24, 2018, from the Planning Director to 620 Main Street Associates, LLC stating, "[a]pproval is based on a 10-page plan set and associated documents including . . . architectural plans, titled 'Final Plan Application: Castle Street Cottages' dated June 27, 2018[, ]" which the Court previously identified as the June 2018 Plans. After oral argument, Defendant provided the Court with these plans. It is this chain that the Defendant claims establishes that the Agreement does define the property to be sold.
Before the Court analyzes these documents to determine whether they satisfy the land description requirement, it must first deal with the issue of incorporation. Plaintiff contends that these documents are not incorporated into the Agreement. The Rhode Island Supreme Court has held that land description "'can be ascertained from the writing itself, or by a reference contained in it to something else[.]'" Cunha v. Gallery, 29 R.I. 230, 231-32, 69 A. 1001, 1001 (1908) (quoting 2 James Kent, Commentaries on American Law *511 (12th ed. 1873)). "'[I]nstruments referred to in a written contract may be regarded as incorporated by reference and thus may be considered in the construction of the contract.'" Stanley-Bostitch, Inc. v. Regenerative Environmental. Equipment Co., Inc., 786 A.2d 1063, 1065 (R.I. 2001) (quoting Rotelli v. Catanzaro, 686 A.2d 91, 94 (R.I. 1996)).
The first level of incorporation is the POS. The Court finds that there is no question that the POS was incorporated into the Agreement. On page 81 of the Agreement, under the section titled ADDENDA INCORPORATED INTO THIS AGREEMENT, it states, "You and We acknowledge that the documents listed below are made a part of this Agreement and that Your Unit shall be built in accordance with the Plans, Specs, Home Worksheet and that all fixtures, hardware, cabinetry and the like shall be of equal or better quality that [sic] that in the model home:
Exhibit A - Plans and Specs
Exhibit B - Public Offering Statement
Exhibit C - Home Warranty" Not only does the plain language of the section, ADDENDA INCORPORATED INTO THIS AGREEMENT (emphasis added), signal to the Court that those exhibits were intended to be incorporated, but specific language of the section also indicates that incorporation was intended: "the documents listed below are made a part of this Agreement. . . ." However, the Court notes that "Exhibit A - Plans and Specs" were never attached to the Agreement nor were they described.
Turning to the second level of incorporation, Exhibit D of the POS lists among other documents the letter dated August 24, 2018 referring to the June 2018 Plans. The Court similarly notes that this document was incorporated into the POS, which in turn is incorporated into the Agreement. Section 19.7 of the POS even states "[a]ll exhibits attached to this Declaration are hereby made a part of this Declaration."
Lastly, the June 2018 Plans are incorporated by reference into the "Planning Board Approval" document. The letter explicitly states, "'[a]pproval is based on a 10-page plan set and associated documents including landscaping and architectural plans, titled 'Final Plan Application: Castle Street Cottages' dated June 27, 2018." There was a plain reference to the June 2018 Plans in the letter, and thus, the plans are incorporated into the Agreement. Accordingly, the Court is proper in analyzing the above-mentioned documents.
Although there was technical incorporation of the June 2018 Plans, the Court stresses that those plans were superseded by the March 2019 Plans. It is obvious that the parties never came to a mutual agreement as to what was being sold and purchased. The parties-Schnaier in particular-persisted in presenting new plans, both before the signing of the Agreement as well as after, which in every iteration fundamentally altered the Unit 8 depicted in the June 2018 Plans and then the March 2019 Plans. There were approximately five different sets of plans that were produced after the March 2019 Plans, all depicting a different Unit 8.
The referenced documents also do not contain a sufficient legal description of the land. First, the Agreement only states, "[y]our Unit is described as Unit #_8_ on that Condominium known as Castle Street Cottages Condominiums which is recorded in the Land Evidence Records in the Town of East Greenwich, Rhode Island in Book __at Page__ or will be recorded in the Land Evidence Records of the Town of East Greenwich, Rhode Island prior to the conveyance of Your Home." The Court finds that this description alone is inadequate as the Condominium Declaration was not yet recorded and no draft of it is in the record. This description does not in any way indicate where Unit 8 was to be placed nor does it define it.
Importantly, the Court again emphasizes that the parties ultimately moved toward agreeing to something other than the Unit 8 described in the Agreement. Not only did the parties produce additional different plans and schematics after the June 2018 and March 2019 Plans-but Unit 8 also ultimately became Unit 9 after construction began. While a foundation was poured and Zarrella had Schnaier inscribe her initials in the cement, there was no building permit presented to the Court depicting Schnaier's unit. Furthermore, because the March 2019 Plans previously approved by the Board were not followed, the Town building official issued a stop-work order and notice of violation.
The Board ultimately did not approve Building E as a duplex because EGCB chose to turn Unit 7 into two affordable housing units, causing the condominium to exceed the Board's limit of nine units.
Next, Defendant argues that the description in the Agreement coupled with the metes and bounds description in the POS provide a sufficient description. The Court disagrees. The metes and bounds description provided in the POS lacks the necessary specificity. The only description of any real property within the POS is the entire parcel of land that makes up the entire development, and there is no dispute that Schnaier was not acquiring the entire parcel. There is no description of the exact location of Unit 8. As Plaintiff argues, it merely describes the whole condominium.
Defendant contends that the specific location of Unit 8 within the parcel described in the POS is not necessary to satisfy the Statute of Frauds because Schnaier is contractually entitled to Unit 8 wherever it is located within the condominium. The POS leaves the location of the unit at EGCB's discretion as "buildings constructed after Phase I in the initial phases are expected to be located as shown on the Plat; however, the Declarant cannot guarantee the exact location of buildings in future phases." POS at 7, Def.'s Exhibits at 262. This contention is without merit because Schnaier was insisting on changes to Unit 8 even before she signed the Agreement.
The Court can glean nothing in the record to support a conclusion that the parties ever agreed to any plans or description for Unit 8. It is obvious and undeniable, however, that Schnaier never agreed to purchase a Unit 8 that resembled either the June 2018 Plans or the March 2019 Plans, and EGCB never agreed to any of the other plans proposed by Schnaier. While much is unclear in this record, the only material fact not in dispute is that the parties never mutually agreed to a description of Unit 8 which could be used to complete their agreement.
Based on the foregoing, the Court finds that (1) the parties never agreed to any final plans for Unit 8 and (2) none of the documents provide a sufficient legal description of the property to satisfy the Statute of Frauds or the common law contract principle of the inclusion of essential terms.
B
Parol Evidence
Regarding parol evidence, the Supreme Court has stated that "[i]f the description of the subject-matter of the agreement between the parties is so uncertain and indefinite that it cannot be applied exclusively to any specific land, parol evidence cannot be received to complete the description; if the description is definite though requiring extrinsic evidence to identify the land which it represents, parol evidence may be received for that purpose." Sholovitz, 42 R.I. at 285, 107 A. at 96. "[A]s long as all the essential terms of a purchase and sale agreement are contained in a writing, alleged modifications and other terms may be supplied by parol evidence." Thompson v. McCann, 762 A.2d 432, 438 (R.I. 2000). Rhode Island case law does not directly address whether a simple description such as "Unit 8" is definite enough to satisfy the description of land requirement. In Preble, the Rhode Island Supreme Court stated that "[t]he rule is that a description is sufficient to meet the requirements of the statute of frauds if the description can apply to but one parcel of property owned by the seller; the property may then be identified by parol. But the description is insufficient if it applies equally well to more than one parcel of property owned by the seller." Preble, 43 R.I. at 17, 109 A. at 710.
In Di Sarro v. Neri, 74 R.I. 118, 122, 59 A.2d 174, 175 (1948), the respondents argued there was nothing "that describes the land referred to in the agreement, and that parol evidence is inadmissible to identify such land with the land situated at 146 and 146 1/2 Spruce street referred to in the memorandum." The Court disagreed and held that parol evidence was properly admitted to establish such identification. See also Pelletier v. Bozoian, 73 R.I. 332, 336, 56 A.2d 177, 179 (1947) (stating that, "The first part of the memorandum makes it clear that the agreement provided for the conveyance of all the unsold lots on the Bozoian plat with the exception only of lots 31 and 32, which were specifically excluded. If that were all, the description of the land to be conveyed would be clear and definite enough to satisfy the statute of frauds and the requirements[.]"). In contrast, the Court in Ray v. Card, 21 R.I. 362, 43 A. 846, 847 (1899) refused to resort to parol evidence for that purpose, but that was because the memorandum contained no description of the land in question but only the words "that lot" and nothing more.
Plaintiff relies on Beriault v. King, 148 Wash.App. 1036 (2009) (unreported) where the Washington Court of Appeals affirmed the invalidation of deeds for condominium "unit 218" because they did not "provide a sufficient description of the property without resorting to extrinsic evidence." Id. at 1. The court explained that the Statue of Frauds required that writings must "contain a legal description of the property by lot and block number, addition, city, county, and state . . . a contract or deed for the conveyance of land must contain a description of the land sufficiently definite to locate it without recourse to oral testimony." Id. at 2. The documents at issue did not do so as they failed to "provide the correct identification of the building in which unit 218 [was] located." Id. at 3.
The court in Beriault rejected the respondent's argument that because there was only one unit 218 in either building of the complex, reading the deeds along with the accompanying "declaration of condominium," survey maps, and floor plans satisfies the statute of frauds. Id. The court held that none of these documents standing alone provided an adequate description and refused to apply the doctrine of incorporation by reference to read them together. Id. However, Beriault notes that Washington's rule is the strictest in the nation. See id.
Although the Court will not repeat its findings previously stated, it will highlight that for the same reasons articulated above, there is nothing in any of the above-referenced documents that provides a definite description of the land or Unit 8. While the Court recognizes that Rhode Island law is more forgiving than the Washington law at issue in Beriault, the Court stresses that the facts in Di Sarro and Pelletier do not align with the facts of this instant action. The insufficient descriptions here cannot apply to but one parcel of property, because, as already noted, both parties never agreed to any plans for Unit 8. As described in Preble, the description here could equally apply well to more than one parcel of property, especially taking into consideration the fact that Unit 8 ultimately became Unit 9. The Court thus finds that the description of the unit in the Agreement and other incorporated documents is so uncertain and indefinite that parol evidence cannot be introduced to complete the description.
C
Part Performance
Under Rhode Island law, the doctrine of part performance is an exception to the Statute of Frauds. Section 9-1-4. In Richard v. Richard, 900 A.2d 1170 (R.I. 2006), our Supreme Court held:
"When a party seeking enforcement of an oral contract "has performed to such an extent that repudiation of the contract would lead to an unjust or fraudulent result, the court will disregard the requirement of a writing and enforce an oral agreement." R.W.P. Concessions, Inc. v. Rhode Island Zoological Society, 487 A.2d 129, 131 (R.I. 1985). A court generally will enforce an alleged oral contract pursuant to the doctrine of part performance only if a party can adequately demonstrate, in reliance on said agreement, possession of the property, improvements thereon, or payment of a substantial part of the purchase price. Pearl Brewing Co. v. McNaboe, 495 A.2d 238, 242 (R.I. 1985) ("[t]aking possession of property * * * together with making improvements or paying a substantial part of the purchase price, is generally sufficient to avoid the bar of the statute of frauds"); R.W.P. Concessions, Inc., 487 A.2d at 131 ("the terms of the agreement must be clear and the possession or improvements in reliance thereon must be substantial and clearly shown"). "[P]art payment of the purchase price, possession or making improvements severally might not be sufficient to remove the case, yet a combination of all may be." Najarian v. Boyajian, 48 R.I. 213, 215, 136 A. 767, 768 (1927). We note, however, that the statute of frauds is not to be taken lightly, and any partial performance must unequivocally indicate the existence of the purported oral agreement." Richard, 900 A.2d at 1175.
In this case, there is no question that Defendant has not satisfied any of these requirements. Defendant did not take possession of the property, nor did Defendant take possession of any of the improvements thereon. Moreover, Defendant did not pay a substantial part of the purchase price- Defendant only made payment of the deposit. Therefore, Defendant cannot overcome the Statute of Frauds with the doctrine of part performance exception.
D
Condominium Act
Defendant argues that the unit description satisfies G.L. 1956 § 34-36.1-2.04. Section 34-36.1-2.04 provides that "[a] description of a unit which sets forth the name of the condominium, the recording data for the declaration, the municipality, city or town, in which the condominium is located, and the identifying number of the unit, is a sufficient legal description of that unit and all rights, obligations, and interests appurtenant to that unit which were created by the declaration or bylaws." The purpose of this section is to allow the conveyancing of a condominium unit by reference to the recorded declaration rather than requiring a metes and bounds description. Schnaier ignores the fact that there is no recording data for the declaration because it was never recorded. Had it been recorded there would have been plans locating and detailing each unit. However, here, Unit 8, as described in the Agreement and depicted in both the March 2019 and June 2018 Plans, does not exist. Defendant, thus, cannot prevail on the argument because the unit's description in the Agreement and other identified documents does not satisfy the requirements of the Condominium Act.
E
Other Contract Issues
Because Defendant has failed to establish that there was a valid contract, the issues of frustration or impracticability of contractual purpose, violation of the implied covenant of good faith and fair dealing, etc. do not need to be addressed.
F
Accoutrements
Regarding accoutrements, Schnaier made selections after signing the Agreement. Schnaier worked with Matt St. Ours, the realtor, before signing the Agreement, to provide a "wish list" of accoutrements. St. Ours sent the list to Zarrella in late March 2020. While the term "accoutrements" is not found in the Agreement, the Agreement does have a section on option items and selection of certain materials from samples. Like the finding made directly above, this Court does not need to address the issue of accoutrements since Defendant has failed to prove that an enforceable contract exists. Moreover, even if this Court did find that there was an enforceable contract between the parties, Defendant's argument regarding accoutrements involves issues of fact. Defendant even admits as much: "[a]ccoutrements to the unit aren't 'lands, tenements, or hereditaments', so the Statute of Frauds argument doesn't apply. Regardless, questions of fact exist whether the parties agreed on them before executing the P & S." Def.'s Mem. Opp'n 35.
IV
Conclusion
Based on the foregoing, the description of "Unit 8" in the Agreement and other incorporated documents did not satisfy the sufficient land description requirement under the Statute of Frauds and the Law of Contracts. Accordingly, this Court finds that no enforceable contract exists between the parties. Therefore, this Court grants Plaintiff's Motion for Summary Judgment and denies Defendant's Cross-Motion for Partial Summary Judgment. Counsel shall prepare the appropriate order and judgment.